The 86 percent solution

Posted: May 24, 2004 12:00 AM

 On May 13, in yet another arrogant ruling, the U.S. 9th Circuit Court of Appeals stopped the development of the Blue Rock Country Club project on Walpert Ridge in Hayward, Calif. -- and ruined plans to begin building Hayward's first new elementary school in 40 years. Ditto a golf course and 614 new homes. The court was unmoved by a friend-of-the-court brief filed by the Hayward Unified School District, which begged the bench to not stop the project, lest it jeopardize $8.5 million in state school-bond construction funding.
Thanks to the 9th Circuit, Hayward children can remain in temporary classrooms. They are hostage to environmentalists and activist Sherman Lewis, who decries "car-ism" (also known as driving) and building new homes and "elite" golf courses in the foothills. Armed with federal Endangered Species Act protections for the California red-legged frog and the Alameda whipsnake, they were able to scuttle grading for the development, which was supposed to begin last week.
They succeeded, even though developer Steve Miller had agreed to a number of mitigations to protect frog and snake habitat. He built four ponds to replace cattle ponds used by the red-legged frogs and agreed to remove any bullfrogs twice a year. He hired specialists to trap snakes so that they can be released where they won't be hurt when the grading starts -- if the grading starts.

 In the middle of the links, Miller set aside 200 acres of open space -- which he laughingly refers to as Blue Rock's "200-acre snake-dating service area."

 The Blue Rock project has been in the works for more than two decades. Originally, it was planned to include 2,400 homes, then 1,250 homes. Then, it was 650 homes. In the last round of negotiations with federal biologists, the number was reduced to 614 homes, plus the golf course and school.

 Attorney Greg Loarie, of the environmentally friendly group Earthjustice, won the 9th Circuit stay. He noted Thursday that much of the project's downsizing occurred before Earthjustice began litigating against the project.

 Developers, Loarie said, "don't care about these snakes and frogs, but I certainly do, and (fellow plaintiffs) Lewis and the Center for Biological Diversity in Oakland do, too." OK, but with 4.1 million acres in the state designated as protected for the red-legged frogs, there should be some wiggle room here.

 Loarie's brief argued that the U.S. Fish and Wildlife Service ultimately approved a plan for the development because of politics -- not science. But it should be noted that a federal judge familiar with the dispute disagreed with Loarie and refuted his claims in an 11-page opinion before the 9th Circuit issued its breezy injunction.

 On Thursday, Lewis explained that he supported a nearby project because it provided "a good balance of housing and open space. What we've been trying to do is arrive at a similar compromise with the Blue Rock project."

 So how much of the land is the Blue Rock developer supposed to give away in a similar compromise? "Eighty-six percent in open space," Lewis answered.

 Blue Rock consists of 1,609 acres. Miller has agreed to give 995 acres to the East Bay Regional Park District. That ought to be enough.

 It was enough for the federal wildlife officials. It was enough for the city of Hayward. It only wasn't enough for people who don't represent the voters.

 When the school district announced that the new school was in jeopardy, the environmentalists crafted a "compromise." They asked the developer to join them in petitioning the court to allow grading for the school and homes, while keeping the golf course on hold. It's like saying the developer has already cut off two fingers, why not one more? Miller has agreed to a mediation hearing with the enviros. But he argues that a new plan would require another round of permitting and environmental review with federal and local officials -- which could scuttle the new school.

 On the anti-growth Hayward Area Planning Association's Web site, Lewis complains that, "The people hurt the most by car-ism are those least able to understand and do something about it, the poor and uneducated."

 I wouldn't want to parrot his patronizing language, but the somewhat un-tony town of Hayward is most hurt by this brand of activism. Countless hours and dollars have gone into wrangling over this property. In the end, the negotiations will result in fewer six- and seven-figure homes to enrich Hayward's tax base -- and fund a new school. All that angst and all those years, just to produce a beautiful development for 600 affluent families, instead of 2,500 families, who will happily drive their SUVs through acres of open land -- perhaps bereft of a golf course.